Warecki v. United States Fid. & Guar. Co.

• Decision Date: 04 February 1930
• Citation: 270 Mass. 233,170 N.E. 49
• Parties: WARECKI v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

270 Mass. 233

170 N.E. 49

WARECKI

v.UNITED STATES FIDELITY & GUARANTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 4, 1930.

Appeal from Superior Court, Suffolk County; Elias B. Bishop, Judge.

Suit by Olga Warecki against the United States Fidelity & Guaranty Company. Decree for plaintiff, and defendant appeals. Affirmed.

J. J. Curran, of Boston, for appellant.

J. B. Abrams, of Boston, and E. J. Davis, of Brighton, for appellee.

SANDERSON, J.

This is an appeal from a final decree establishing the amount due under a policy of insurance issued by the defendant to Louis F. Russo under the terms of the compulsory insurance act and ordering its payment to the plaintiff. The sum to be paid represented the amount of an unsatisfied judgment in favor of the plaintiff against Louis F. Russo. The defendant in this suit offered no evidence but made a motion for a directed verdict at the close of the plaintiff's case. A contention made by it for the first time at the argument of the case in this court is that the plaintiff cannot recover because Louis F. Russo has not been joined as a party defendant. The proper mode of taking advantage of nonjoinder of parties in equity is by demurrer, plea or answer. Jewett v. Tucker, 139 Mass. 566, 577, 2 N. E. 680. Ordinarily the debtor, even if a judgment debtor, should be made a party to a bill to reach and apply property to the payment of his debt. But if we assume that the defendant would have been entitled to have Russo made a party if the question had been properly raised at a time when such matters ordinarily should be considered, it does not follow that it is entitled to such order now. The debt against Russo had been incontrovertibly established by the judgment (St. 1923, c. 149, § 1), and without him as a party the defendant could make all defences to the bill that would be open if he had been joined. No relief is sought against him, and the decree entered will protect the rights of all parties now before the court without prejudice to any rights the defendant may have against Russo. ‘Where the defect is formal and technical merely, and is only objected to at the hearing, and especailly if other parties are needed only for the defendant'sprotection, the decree will not be delayed if the nonjoinder produces no other prejudice to the rights of parties before the court.’ Schwoerer v. Boylston Market Association, 99 Mass. 285, 295. When the suggestion of nonjoinder has not been made until after a hearing on the merits ‘if it is found that entire justice can be done to all parties now before the court, and without prejudice to any of their rights, and that conflicting interests, if there be any * * * may hereafter be adjusted, the objection should not now prevail.’ Jewett v. Tucker, 139 Amss. 566, 579, 2 N. E. 680, 686; Schwoerer v. Boylston Market Association, supra; Evans v. Wall, 159 Mass. 164, 168, 34 N. E. 183,38 Am. St. Rep. 406;Wickwire Spencer Steel Corp. v. United Spring Co., 247 Mass. 565, 569, 142 N. E. 758. The rights of Russo will not be prejudiced by an order that the amount of the judgment against him be paid by the defendant.

The defendant in its amended answer admitted that it received a report of an accident shortly after February 6, 1927, signed by one Louis F. Russo of Roslindale in the county of Suffolk, and also that the automobile of one Louis F. Russo of Roslindale was then and there by virtue of St. 1925, c. 346, and acts (St. 1926, cc. 272, 368, 392) in amendment thereof covered by a motor vehicle liability policy issued by the defendant to him. The trial judge found that the policy issued under St. 1925, c. 346, and acts in amendment thereof to Louis F. Russo was in force in February, 1927, when the plaintiff sustained...